The proceedings before the trial judge
15 The Federal Circuit Court of Australia Act 1999 (Cth) provides that the jurisdiction of the Federal Circuit Court must be exercised in open court (s 13(2)) and that, in any proceedings before it, the Federal Circuit Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted (s 42). In addition, s 75(2) contemplates that if a judge of the Federal Circuit Court reserves his or her reasons for a decision in a proceeding and the judge who heard the proceeding later prepares reasons, but is not available to publish them, another judge can do so on his or her behalf.
16 I explained the purpose of the law's requirement that judges give reasons for their exercise of judicial power in Koutalis v Pollett (2015) 235 FCR 370 at 377-378 [36]-[37] as follows:
In Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72 at [26], Gaudron, Gummow, Hayne and Callinan JJ referred to the need to give reasons for decisions as being an ordinary rule. There, they said that reasons for refusing leave need not be extensive, and that in appropriate cases, little more might be required than perhaps a very short statement of the chief conclusions that the judge refusing leave had reached. They said, critically:
The disappointed applicant (and any court asked to review the refusal) must, however, be able to know from the reasons given by the primary judge why the judge reached the decision to refuse leave. (emphasis added)
More recently, in Wainohu v State of New South Wales (2011) 243 CLR 181 at [54]-[56] French CJ and Kiefel J said that the requirement to give reasons for judgment was an ordinary incident of the judicial process of general application for all persons exercising judicial functions. The importance of giving reasons for judicial decisions was also emphasised by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 at [24], where their Honours said that after the general facility of appeal was introduced and the number of civil jury trials reduced, there had been an:
increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision (Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666-667 citing Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257-258, 268-273, 277 to 281). Such reasons are, at once, necessitated by the right of appeal and enhance its utility. (emphasis added)
17 The Full Court of this Court has held that a judge of the Federal Circuit Court can reserve his or her reasons after making final orders: Richmond v BMW Australia Finance Ltd (No 2) (2009) 174 FCR 232 at 234 [10]-[11], per Black CJ with whom Jacobson J at 235 [18] and Rares J at 235 [19] agreed. In that case, the judge had made a sequestration order on the last day of the 24 month period before which a creditor's petition would have expired and then reserved his reasons. The judge delivered those reasons 21 days later. In those circumstances, the Full Court held that the 21 day period between the making of the final order and the delivery of his Honour's reserved reasons was not inappropriate (at 234 [13], 235-236 [23]), no doubt because his Honour had to make a final order before the petition would expire the next day and prepared and delivered his reasons relatively soon afterwards.
18 Ordinarily, when at the conclusion of a hearing or after making an order, a judge announces that he or she reserves judgment (i.e. the making of orders and the giving of reasons) or his or her reasons, or says some words to that effect, the consequence is that, although the judge has not made an order for adjournment, the proceeding will remain on foot: Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554 at 569-570 [64]-[67], per Spender ACJ, Dowsett and Collier JJ; Li v Wu [2017] FCA 500 at [55]-[56], per Rares J. However, if the judge also makes an order that the proceedings stand over, or is adjourned, to a definite date, then the order fixing the new date is an order, but there is no order reserving the reasons. After all, the judge cannot make an order binding himself or herself to give reasons. Ordinarily, the giving of reasons for a final (and sometimes for an interlocutory) order is a judicial duty. However, if a judge of an inferior court does not say, after making a final or other order, that he or she reserves the reasons for it (where, as in the case of the Federal Circuit Court, there is power to do so in s 75(2)), ordinarily he or she becomes functus officio and cannot later give reasons: Palmer v Clarke (1989) 19 NSWLR 158.
19 In this matter, her Honour's orders made on 29 June 2018 were entered on that day. They noted that the applicant had appeared in person, the Minister had appeared by his solicitor and recorded the Court's orders that the application was dismissed and the applicant pay the Minister's costs, fixed in the sum of $5,500. The orders did not record that her Honour had reserved her reasons.
20 Her Honour's reasons commenced with the following paragraph:
1. These reasons support the making of orders on 29 June 2018.
21 The reasons contained no explanation as to how they came to be given and, moreover, they did not contain any indication of whether they reflected her Honour's actual state of reasoning on the day she made the orders, as opposed to being reasons that she conceived later.
22 The Tribunal had given substantive reasons for its decision but, when her Honour dismissed the application on 29 June 2018, she gave no reasons for her decision on which the applicant might seek to base an appeal. The applicant had 21 days in which to file an appeal from the final orders made on 29 June 2018 pursuant to r 36.03(a)(i). In the event, when her Honour gave reasons that she said "supported" her final orders earlier, she did so 21 days after those orders had effect. It would have been almost impossible, even for skilled counsel, to have prepared and filed a notice of appeal as of right on 20 July 2018, being the day the reasons are dated.
23 There was no apparent urgency or other necessity requiring her Honour to determine the matter on 29 June 2018, in advance of giving reasons. Certainly, the reasons do not explain why it was appropriate or necessary to make final orders before giving any reasons to "support" those orders.
24 On the incomplete material before me of what occurred on 29 June 2018, there does not appear to be any basis on which it was appropriate for her Honour to deliver reasons for her final orders at a later time, when effectively the applicant could not file an appeal as of right based on any alleged errors in whatever may have been her Honour's reasons for making the orders. By making final orders without any apparent necessity to do so before giving any reasons beforehand contemporaneously, her Honour appears to have created an unfair situation for the applicant who did not know what her reasons were and could not formulate a meaningful notice of appeal in their absence. It may well be that, if further evidence or material were before me, her Honour's jurisdiction or power to proceed as she did would be shown either to have been established or absent. However, on the material before me, it is not possible to determine that and it may be that it was appropriate for her Honour to have proceeded as she did. But in an unexceptional case, like this presently appears to be, the final orders should have been made only when her Honour was ready to give reasons for making those orders.
25 While I am concerned about the unusual way in which her Honour proceeded, which may have provided a ground of appeal or for the extension of time, there is insufficient material before me, including evidence, as to why her Honour made final orders on 29 June 2018 and reserved her reasons. However, an inappropriately presented application for an adjournment, such as this, is not an appropriate vehicle in which to examine those issues.